Climate Liability Newshttps://www.climateliabilitynews.org
Covering legal accountability for climate changeThu, 23 May 2019 17:54:33 +0000en-UShourly1https://wordpress.org/?v=5.0.4https://i2.wp.com/www.climateliabilitynews.org/wp-content/uploads/2017/04/cropped-cropped-SmallLogo2.jpg?fit=32%2C32&ssl=1Climate Liability Newshttps://www.climateliabilitynews.org
3232127236248Government Argues for Dismissal of Climate, Wilderness Suithttps://www.climateliabilitynews.org/2019/05/23/climate-wilderness-rights-of-nature-animal-defense-fund/
Thu, 23 May 2019 17:52:32 +0000https://www.climateliabilitynews.org/?p=5821By Kaitlin Sullivan The Department of Justice filed a motion to dismiss a groundbreaking climate case brought last October by two groups that claim the federal government is violating their Constitutional rights by contributing to climate change. The lawsuit, filed in U.S. District Court in Oregon by the Animal Legal Defense Fund and Seeding Sovereignty, […]

The Department of Justice filed a motion to dismiss a groundbreaking climate case brought last October by two groups that claim the federal government is violating their Constitutional rights by contributing to climate change.

The lawsuit, filed in U.S. District Court in Oregon by the Animal Legal Defense Fund and Seeding Sovereignty, an indigenous and environmental justice organization, named the Department of Interior, the Department of Agriculture and other federal agencies as defendants. It claims the government’s inaction on climate change, its support of the fossil fuel industry and other policies is destroying wilderness areas, violating the right to be left alone guaranteed under the First, Fifth and Ninth amendments.

The government’s response said the lawsuit contains a too-narrow interpretation of those rights and would require inventing entirely new Constitutional rights. The DOJ also asserted that because the right to wilderness does not involve a person’s body or a relationship between two people, it is therefore not a fundamental privacy right that warrants protection by the government.

The DOJ said that no court has ever recognized a fundamental right to wilderness and that numerous courts have thrown out such cases. “There is no First Amendment right not to associate with the rest of humanity and to instead be ‘free from human influence in wilderness,'” the motion said.

The right to privacy, or to be let alone, however, has been interpreted by the Supreme Court to include the right to be free from intrusion at home, free from police surveillance and the right to terminate a pregnancy.

“It pops up in different ways,” said Carter Dillard, senior policy advisor for the Animal Legal Defense Fund and a lawyer on the case. “What you have is a spectrum of privacy. The right to literally be let alone and that experience is what our plaintiffs are losing because of the federal government.”

Dillard argues that the concept of wilderness as being let alone is clear in The Wilderness Act, and Supreme Court precedent supports it.

“As a result of national policies that promote, subsidize, and develop carbon-intensive industries, the Government bears a higher degree of responsibility than any other individual, entity, or country for exposing Plaintiffs to the dangerous conditions on federal lands caused by climate change,” the complaint says, placing blame on the government’s sale of coal and oil leases on public land, deforestation and the subsidization of animal agriculture and monoculture.

“The government protects wilderness over small cases of encroachment, such as ATVs, but then their lawyers are going to court to say the things that are destroying wilderness at an unprecedented pace are not a problem,” said Dillard. “They’re talking out of both sides of their mouth.”

The DOJ argued that the complaint’s definition of wilderness is based on theoretical concepts and fails to identify specific places where the plaintiffs are being denied access.

The government motion also said that the requested right is “divorced from any of the rights that the Supreme Court has recognized as fundamental,” such as marriage, family and procreation, which “involve private relationships and choices that have little to no impact on the rights and interests of the public at large, and which can be protected simply by the government refraining from interference.”

Sarah Bexell, director of humane education at the University of Denver and a plaintiff in the case, argues that access to nature is important for healthy child development.

“As they’re distanced from wilderness, those children may care less about it,” said Bexell. “These children grow up and become policy makers and begin to make their own life decisions––such as buying an SUV or biking to work––that could be detrimental to their both their own health and global health.”

As an alternative to dismissing the lawsuit, the DOJ requested a stay of this case pending the Ninth Circuit Court of Appeals’ resolution of the landmark youth-led climate case Juliana v. United States, in which 21 young people claim the government is violating their right to a safe climate. The DOJ said the claims in that case, are closely related to the wilderness case. Dillard argued that the two cases are fundamentally different and therefore should proceed independently.

The government agreed to give the plaintiffs until July 1 to file their response, though a court order has yet to be issued. The DOJ did not respond to a request for comment.

]]>5821Oil Company Supporters Argue Cities Cannot Sue for Climate Liabilityhttps://www.climateliabilitynews.org/2019/05/22/oil-industry-support-climate-liability-chevron/
Wed, 22 May 2019 19:15:49 +0000https://www.climateliabilitynews.org/?p=5813By Dana Drugmand Industry trade groups, several law professors, a free-market legal think tank, the U.S. government and 18 states have rallied behind five major oil companies in fighting a major climate liability lawsuit. They filed a flurry of briefs supporting the companies against claims by the cities of San Francisco and Oakland that seek […]

Industry trade groups, several law professors, a free-market legal think tank, the U.S. government and 18 states have rallied behind five major oil companies in fighting a major climate liability lawsuit. They filed a flurry of briefs supporting the companies against claims by the cities of San Francisco and Oakland that seek to hold the oil companies accountable for the costs of adapting to sea level rise and other climate impacts.

The briefs were filed last week in the Ninth Circuit Court of Appeals, which will hear the appeal of a lower court dismissal of the case. In them, the oil companies’ supporters argue that courts cannot intervene in climate and energy policy, and that two California cities cannot impose liability on five select companies for a global problem that also implicates domestic and foreign policy. They charge that federal statutes and the Constitution prohibit state law nuisance claims relating to climate change.

San Francisco and Oakland first filed the case in California state court in September 2017 against BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell. Defendants removed it to federal court and U.S. District Judge William Alsup dismissed the case in June 2018. The cities recently appealed Alsup’s ruling and submitted their brief in March, which was followed with a wide range of supporting briefs including from six U.S. senators, former federal diplomats and nine states plus the District of Columbia.

The oil companies were supported by briefs from the federal government, 18 states, three law professors, the Washington Legal Foundation, the National Association of Manufacturers, and the U.S. Chamber of Commerce. Most of these interests have previously weighed in supporting fossil fuel defendants in similar climate suits.

Big Oil Defenders’ Arguments and Financial Ties to Fossil Fuels

The amici or friends supporting the five oil companies in this case argue that the companies cannot be held liable under California public nuisance law for the global issue of climate change. Although San Francisco and Oakland face billions of dollars in costs for dealing with climate-related damage, the interests defending the companies say that the oil majors cannot be forced to pay these costs.

The U.S. government argues that the cities’ claims are preempted by federal statute and the Constitution. It also contends that the Clean Air Act displaces the claims and that the claims interfere with the separation of powers. The federal government is itself a defendant in a climate liability lawsuit, Juliana v. United States, brought by 21 young people alleging violation of their Constitutional rights to a healthy climate.

The states backing the oil companies, all represented by Republican attorneys general and many of which are home to significant fossil fuel production, say the claims raise “political questions” and that climate policy should not be decided by courts.

The WLF challenges the plaintiffs’ claims based on proximate cause, saying there is not a clear enough connection between the five oil companies and the harm. “The path from John D. Rockefeller and his successors, on one side, to the present-day tides of the Bay Area, on the other, is too long, too winding, and too tangled to support liability,” the brief argues. WLF has frequently opposed environmental regulations and is reported to have funding ties to fossil fuel groups, the Koch Family Foundations and ExxonMobil.

Additional briefs were submitted by the National Association of Manufacturers and the U.S. Chamber of Commerce, two large corporate-backed trade associations with a long history of lobbying against environmental regulations and climate policy. NAM maintains that climate change cannot be addressed through the courts and notes that all previous attempts to do so have failed. The Chamber argues that the Constitution bars any potential state law claims in this case.

Chevron Raises First Amendment Defense

The oil companies also filed responses. One brief submitted by BP, ConocoPhillips, ExxonMobil and Shell defended the district court’s dismissal for lack of personal jurisdiction, which applied only to the four companies not based in California. Chevron, which is headquartered in California, filed the second reply brief arguing to reject the appeal on other grounds.

Chevron’s brief also addresses the allegation that the oil companies knowingly sold and promoted a harmful product and engaged in a sophisticated campaign of deception to downplay the risk and discredit the science. Rather than deny the allegation, Chevron claims that “the ‘wrongful’ conduct alleged is constitutionally protected speech immunized by the First Amendment.”

Exxon has invoked this First Amendment defense in attempting to quash investigations into its alleged deception by the attorneys general of New York and Massachusetts, which was flatly rejected by a federal judge. The companies briefly referenced “lobbying and other First Amendment-protected activities” in arguing against New York City’s climate liability case, but Chevron’s discussion of the First Amendment marks the first time this defense has been elaborated on in the municipal climate cases.

Chevron attorney Theodore J. Boutrous Jr., who specializes in First Amendment law, argues in the brief that “the so-called ‘promotional’ activity Defendants allegedly undertook to ‘discredit the growing body of scientific evidence’ would be nothing more than constitutionally protected lobbying activity.” Boutrous cites the Noerr-Pennington doctrine, originally formulated to protect businesses from anti-trust liability but which companies have often tried to use to justify other lobbying efforts. Boutrous argues that the doctrine protects lobbying against climate action, even if it involves deception.

But several climate law experts say that doctrine does not extend to product liability claims.

“Cities and counties filing lawsuits seeking compensation or abatement under a range of theories ranging from public nuisance to failure to warn simply does not amount to an infringement on First Amendment rights,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School. “There is no First Amendment protection for failing to warn consumers of known harms from products.”

Oakland City Attorney Barbara J. Parker also referenced this point in a press release announcing the cities’ brief in their appeal filed in March. “Companies cannot lie to their customers for decades about the dangers of their products and walk away with impunity,” she wrote.

]]>5813European Court Rules Individuals Cannot Sue Over Climate Changehttps://www.climateliabilitynews.org/2019/05/22/european-union-climate-change-peoples-climate-case/
Wed, 22 May 2019 15:13:06 +0000https://www.climateliabilitynews.org/?p=5808By Karen Savage Despite recognizing that climate change affects everyone, a European court dismissed a case filed by 10 families and groups in eight countries, ruling they did not have standing because they did not show climate change harmed them specifically. The suit known as the People’s Climate Case, filed by families from Portugal, Germany, […]

Despite recognizing that climate change affects everyone, a European court dismissed a case filed by 10 families and groups in eight countries, ruling they did not have standing because they did not show climate change harmed them specifically.

The suit known as the People’s Climate Case, filed by families from Portugal, Germany, France, Italy, Romania, Kenya and Fiji and a youth association in Sweden, was dismissed by the European General Court on Tuesday.

In the suit, filed last year against the European Parliament and the Council of the European Union, the families alleged that EU’s targets to reduce domestic greenhouse gas emissions are inadequate and will not prevent dangerous climate change and or protect their fundamental rights to life, health, occupation and property. The EU aims to reduce emissions 40 percent below 1990 levels by 2030. The plaintiffs also demanded that three regulatory acts designed to reach those target be nullified until a more stringent target was set.

The defendants did not argue the merits of the case, but maintained that legal recourse was not available through the court because the threat of climate change is pervasive and common to all people, not just the plaintiffs. That made the case inadmissible.

The court agreed, ruling that the plaintiffs did not establish that the emission targets and the regulatory acts based on those targets “infringed on their fundamental rights and distinguished them individually” from others who are affected by climate change.

“It is true that every individual is likely to be affected one way or another by climate change,” the court said in its ruling. “However, the fact that the effects of climate change may be different for one person than they are for another does not mean that, for that reason, there exists standing to bring an action against a measure of general application.”

Attorneys for the plaintiffs had argued that the court should rule on the substance of the case before addressing the issue of admissibility. They plan to appeal.

“The case is not dismissed on the merits. On the contrary, the court accepts that climate change is impacting everybody but refrains to engage with the facts of climate change and its human rights impacts,” plaintiffs’ attorney Roda Verheyen said.

“During the appeal procedure we will ask the European Court of Justice to look at the decision in the light of the facts of climate science and its human rights impacts we have shown in our application. This order cannot stand if the EU is serious about an ‘Europe for all.’”

It is difficult for citizens to gain access to European courts. In the appeal to the European Court of Justice, the plaintiffs will argue the families and youth group do have the required standing.

“In our legal case, we are not asking for money or compensation,” said Giorgio Elter, an Italian mountain farmer, father and plaintiff, who wants urgent action on climate change and he worries about his daughters’ future.

“We already feel the devastating consequences of climate change,” said Elter. “This will become unbearable if the politicians keep delaying concrete actions.”

]]>5808BP Passes One Climate Resolution, Escapes a More Ambitious Onehttps://www.climateliabilitynews.org/2019/05/21/bp-shareholder-resolutions-climate-change/
Wed, 22 May 2019 02:32:24 +0000https://www.climateliabilitynews.org/?p=5805By Karen Savage Climate change-related proposals met with mixed results at British Petroleum’s annual shareholder’s meeting on Tuesday. A proposal directing BP to adopt a business strategy in line with the goals of the Paris Agreement passed with an overwhelming 99 percent of the shareholder vote. But a second, stronger proposal asking the company to […]

A proposal directing BP to adopt a business strategy in line with the goals of the Paris Agreement passed with an overwhelming 99 percent of the shareholder vote. But a second, stronger proposal asking the company to reduce emissions from the use of its products was defeated.

BP’s annual meeting was held in Aberdeen, Scotland, where activists set off an alarm and interrupted the meeting shouting, “It’s a crime scene!” They demanded the company end all new oil and gas projects, including plans to drill in the Arctic. The meeting came a day after climate activists in Denver and London blocked entrances to company headquarters to make similar demands.

The shareholder resolutions were proposed by Climate Action 100+, a group of 300 investors with more than $33 million in assets.

The successful resolution directs BP to disclose the estimated carbon intensity of its products, its methodology for considering the climate impact of new projects and how the company will set and measure emissions targets to keep global temperatures well below 2 degrees Celsius, as outlined in the Paris Agreement. It also links executive pay to the company’s ability to meet its climate targets.

“Today’s vote signals clear and uncompromising investor intent that BP take immediate and critical action to reduce its climate change emissions,” said Danielle Fugere, president of As You Sow, a nonprofit that advocates for corporate responsibility through shareholder advocacy.

Bob Dudley, group chief executive for BP, said the company is concerned about emissions and climate change and will work to expand renewable energy, but also relied on familiar industry talking points to justify the continued extraction of oil and gas.

“There are billions of people on the planet—and more to come—who need access to energy to help improve their living standards,” said Dudley, repeating a common refrain from the industry in justifying the status quo.

“It’s why we’re focused on advantaged oil—the most competitive barrels that can be produced at low cost or high margin. It’s why we’re growing our gas production—a vital fuel for the future that’s affordable, abundant and cleaner-burning than coal in power generation,” Dudley said.

To align with the goals of the Paris Agreement, however, BP must reduce current investments in oil and gas development and adopt clean energy production, Fugere said. She praised the passage of the first resolution, but said by refusing to address emissions from its products, it is impossible for BP to completely align with the Paris Agreement. She said BP’s refusal to reduce what are known as Scope 3 emissions, which result from the use of its products, falls short of the recent commitments from Royal Dutch Shell.

“Unfortunately, the company refuses to follow Shell’s lead in taking responsibility for product emissions,” Fugere said.

“While Shell has only agreed to relative reductions in ‘Scope 3’ emissions, not absolute reductions as needed to achieve the Paris goal — BP has so far refused to address emissions from its products at all, a position that makes Paris compliance impossible to achieve,” said Fugere, who said the time for action is short and business-as-usual plans are unacceptable.

Shell pledged last year to reduce the net carbon footprint of its energy products and while it has gone further than other oil companies by agreeing to targets involving the use of its products, it still has no plans to back away from its core business.

Seven environmental and human rights organizations in the Netherlands filed suit against the company in April, contending that a reduction of the company’s carbon footprint is not the same as a reduction in total greenhouse gas emissions. The plaintiffs allege Shell knows it will not reach the goals as outlined in the Paris Agreement and contend the company is measuring reductions using a methodology that could allow it to meet its stated targets without reducing its carbon emissions.

]]>5805Member Companies Face Pressure to Disavow Trade Group’s Anti-Climate Actionshttps://www.climateliabilitynews.org/2019/05/21/national-association-manufacturers-climate-microsoft/
Tue, 21 May 2019 19:00:55 +0000https://www.climateliabilitynews.org/?p=5799By Karen Savage Microsoft is a prominent example of an American company walking a public relations tightrope on climate change. It professes a serious commitment to reduce greenhouse gas emissions, touts its clean energy bonafides and vocally supports the Paris Climate Agreement and the dire need to combat a growing climate crisis. But it also […]

Microsoft is a prominent example of an American company walking a public relations tightrope on climate change. It professes a serious commitment to reduce greenhouse gas emissions, touts its clean energy bonafides and vocally supports the Paris Climate Agreement and the dire need to combat a growing climate crisis. But it also remains a member of a trade group, the National Association of Manufacturers (NAM), which has worked for decades to delay action on climate change and defend the fossil fuel companies whose products cause it.

NAM, in fact, has been so proactive in anti-climate action projects that it draws comparisons to its support for the tobacco industry as it faced a liability battle in the 1980s. NAM, along with other trade groups, backed tobacco companies as they faced hundreds of lawsuits and were charged with racketeering by the federal government for deceiving the public about the catastrophic health hazards of smoking.

As then, NAM’s member companies face public pressure for supporting those efforts. Microsoft, along with other companies, including Intel and Proctor and Gamble, told Climate Liability News that they disagree with NAM’s actions and policy positions on climate change.

But they have not ended their memberships. While other climate change-denying groups such as the American Legislative Exchange Council have suffered membership losses because companies like Google and Apple felt they could no longer be publicly associated with its tactics, NAM has experienced no such repercussions so far.

“The views expressed by NAM do not reflect Microsoft’s position on climate change,” a Microsoft spokesperson wrote in a statement. “Microsoft is committed to sustainability and addressing climate change. We work with many groups on various technology policy issues and do not expect that any organization’s agenda will align to ours in all policy areas.”

The Trade Group Tango

Whether a company joins—and remains—a member of NAM or any trade group depends on how much it agrees with the association’s activities and how its membership in the association affects its reputation, said Michael Barnett, a professor of management & global business at Rutgers Business School who has studied trade groups.

“[Trade associations] are effective by influencing what others outside the industry think of the industry, like regulators, like customers, like communities,” Barnett said.

Trade groups help shield individual companies from the public relations backlash of lobbying on behalf of their industry. They often work as organizing forces to oppose regulation of industries and to lobby government for favorable laws and policies.

“The member firms want cover, they want that legitimacy, they want an improved reputation, but they don’t want to do those things necessary to gain that,” Barnett said. “It’s sort of like they’ve hired a personal trainer and they want that trainer to say, ‘Eat cake and you’re going to get fit.’”

Sharon Eubanks, a former Department of Justice lawyer who led the government’s racketeering case against the tobacco industry, compared efforts by NAM to defend the fossil fuel industry’s inaction on climate change to efforts by trade groups to back the tobacco companies. She cited the Tobacco Institute and the Center for Tobacco Research, which provided faulty research and inaccurate testimony to support the tobacco industry’s lies about the harms of its product.

“I would say that this group is a little more in your face and direct than the tobacco industry was in what they are doing,” Eubanks said. “They tried to put on a fig leaf, the tobacco industry did, but NAM, there’s no fig leaf—it’s out there.”

NAM has attacked climate scientists, undermined international climate negotiations and worked to delay the regulation of greenhouse gas emissions through the Global Climate Coalition, a fossil fuel front group that operated from 1989 to 2002. NAM and the Global Climate Coalition were so closely intertwined that one recently discovered document instructs members to make dues checks payable to “NAM – Global Climate Coalition.”

More recently, NAM launched its Manufacturers’ Accountability Project to defend big polluters against climate liability suits. Formed in 2017, the Manufacturers’ Accountability Project has attempted to discredit municipalities filing suits against oil companies for the damage they’ve caused to the climate.

Why Do NAM’s Members Abide Its Backing of Fossil Fuel Companies?

NAM doesn’t publicly list its members, and companies with executives on NAM’s board include large fossil fuel companies with a clear interest in preventing climate liability suits.

At the same time, other board members come from a wide variety of companies, some which appear to have a strong commitment to protecting the climate and have little or no chance of being named in a climate liability suit, including Pella, Microsoft, Intel, Mueller WP, Volvo, Ball, Proctor and Gamble, Corning and Baker Boy, a North Dakota-based donut chain, among others.

Intel is also carefully distancing itself from NAM’s campaigns to delay action on climate change.

Intels positions don’t always align with NAM’s, said William Moss, an Intel spokesperson.

“In the case of climate change, we have raised it directly with NAM, and state in our climate change policy our support for the IPCC and the Paris Agreement, and our own commitment to reducing our carbon footprint,” said Moss, who added that the overall benefits of Intel’s membership in NAM outweigh its differences on issues like climate change.

“In areas where we may have significant differences, we often publish our position separately so our stakeholders know where we stand,” Moss said.

Proctor and Gamble said its NAM membership is aligned with its general business goals and strategies, but the company does not agree with NAM’s position on every issue.

“We also respect and value the views of our shareholders, especially on topics that are of importance to the company,” said a Proctor and Gamble spokesperson in a statement. “The trade associations of which we are members are aware of our policy positions, including our views on climate policies. We are consistent in the positions we share with external stakeholders as well as in our trade association engagement.”

NAM did not respond to a request for comment, but in a radio interview last year, its president, Jay Timmons, claimed NAM’s 250 board members are “unified in their concern about what lawsuits like this will do to manufacturing operations if they are successful,” Timmons said, referring to climate liability suits.

Guy Moos, president of Baker Boy, said his company remains a member of NAM because of other membership benefits, not its stance on climate issues.

“In North Dakota, we’re probably wired a little differently because the Bakken oil field is a pretty big deal around here and so I personally don’t take a position of anti-fossil fuel,” Moos said.

Barnett said the more trade associations try to serve a narrow focus, the more difficult it is to retain a broad industry base.

After a recent review of its membership in several trade associations, Shell found it had “some misalignment” with NAM’s climate-related policy positions. While the oil giant announced it would not renew its membership in the American Fuel and Petrochemical Manufacturers, it said it would “continue to engage with [NAM] and closely monitor our alignment on climate-related topics.”

Shell is facing climate liability suits in the U.S. for the damage its products have done to the climate and for failing to adequately plan for and protect its facilities from climate change. Seven environmental and human rights organizations in the Netherlands have filed suit against Shell for failing to align its business model with the goals of the Paris Climate Agreement.

Barnett said fossil fuel companies will continue to accrue liability as long as they deny responsibility for climate change.

The cost of that liability will only increase as more and more evidence comes to light showing they knew about the catastrophic effects of climate change, hid that danger from the public and fought to continue business as usual, he said.

“If you think about companies like Exxon that are facing lawsuits on many fronts now for clearly recognizing the dangers—a la tobacco, recognizing the dangers decades prior to actually admitting it—it becomes a time bomb and eventually it’ll explode,” Barnett said.

This is the third in a series of articles on the trade group coordinating opposition to climate liability suits, the National Association of Manufacturers.

Hawaii is uniquely situated to bear the burden of climate change, with rising seas, decimated coral reefs and an increase in tropical storms already threatening local livelihoods and indigenous culture as well as the state’s $16.8 billion tourism industry.

Lawmakers and experts met in Honolulu earlier this month to discuss current trends in climate litigation and how Hawaii could leverage its own laws to recoup damages brought by climate change.

Hirono spoke via video at the event, which was also attended by Sen. Brian Schatz and state Rep. Nicole Lowen. Other speakers included legal and environmental experts who discussed the threats climate change pose to the state.

The recent trend of climate liability lawsuits brought by state and local governments has grown to more than a dozen and attempt to pass the economic burden of climate change from citizens to polluters, said Ann Carlson, the Shirley Shapiro Professor of Environmental Law at the UCLA School of Law, where she also serves as co-director of the Emmett Center on Climate Change and the Environment.

Such legal action could put fossil fuel companies on the hook for damages. The state of Rhode Island, cities of New York, Baltimore, Oakland and San Francisco and Boulder as well as counties in California and Colorado are among those that have filed lawsuits against the fossil fuel industry, a wave of claims that has spread from exclusively coastal regions to inland jurisdictions.

Carlson said cases like New York’s, which was dismissed by a federal judge last year but is under appeal, could still be brought on the state level under public nuisance doctrine. The sweeping common law requires plaintiffs to prove substantial harm to the public and could be the premise of future cases. As the science behind climate change becomes more concrete, those filing climate cases against polluters have adjusted their strategies, opening up the possibility for more pointed legal action.

“Scientists now know and can show that there is a linear, nearly one-to-one correlation between greenhouse gas emissions and sea level rise,” Carlson said. “The connection between emissions and harms has gotten much more sophisticated and what that means is that it’s a lot easier to prove a correlation between emissions and damage on the ground.”

In Hawaii, that damage is slated to rack up a bill into the many billions of dollars. Future sea level rise in the Hawaiian Islands is projected to be at least 20 percent higher than the global mean, according to the City and County of Honolulu Climate Change Commission. The fourth U.S. National Climate Assessment predicts a sea level rise of roughly three feet that will cost Hawaii at least $19 billion in damages by the end of the century. That includes roads, bridges and highway infrastructure that will need to be either raised or pushed back to avoid rising seas.

Growing evidence has shown that fossil fuel companies, including ExxonMobil, knew about the detrimental effects their business would have on the climate and yet they worked for decades to create doubts about that science. That could strengthen the cases. Because this type of litigation is still in its infancy, the outcome of the early cases will likely determine whether or not more states and cities bring similar cases in the future, and which laws they will use to do so.

“The big question here is whether state nuisance law will allow these cases to go forward,” Carlson said. “If they go back to state court, they’re likely to go into discovery and that’s what the oil companies are trying to avoid at all costs.”

Hawaii’s laws concerning indigenous rights provide additional grounds for the state to bring potential climate lawsuits, the panelists said. The state follows U.S. common law and recognizes indigenous rights. Courts as well as state and county agencies are constitutionally mandated to protect “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians.”

Because native Hawaiian customs are largely tied to natural resources, state law that protects indigenous rights also protects beaches, streams and native plants that are damaged as a result of climate change.

“This consideration plays a unique role in informing a range of laws including the public trust doctrine that will have a significant impact on climate litigation in Hawaii,” Kapuaʻala Sproat, director of the Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawaii, said in an interview. “At the county level we had great representation from the various legal offices that are considering every legal tool they have in their toolboxes to address the climate crisis.”

Sproat said a previous case succeeded in restoring four streams to their natural state after they were diverged to feed plantation agriculture. The courts gave significant consideration to the impact these diversions were having on traditional Hawaiian customs and culture. Drought, flooding, rising sea levels and increased erosion will all affect native Hawaiian practices and would likely receive the same consideration in court, she said.

Although a local climate lawsuit has yet to be brought on behalf of the islands, a recent poll showed Hawaiian voters are largely in favor of holding polluters responsible for environmental damages. Seventy-five percent of those polled thought fossil fuel companies should be held liable for some of the costs needed to protect communities from climate change and a similar portion supported climate litigation.

Hawaii was the first state to implement legislation that aligns with the Paris Agreement and is one of several states with environmental rights provisions in their constitutions. The state’s legislators want Hawaii’s proactive climate policy––which includes committing the state to 100 percent renewable energy by 2045 and a proposal for the state to become the first to tax carbon emissions––to set an example for climate change mitigation worldwide.

“We have to take a series of decisive actions to deal with the damage that is being done to our planet by climate change,” Hirono said.

Correction: An earlier version of this article incorrectly identified Nicole Lowen as a U.S. congresswoman. She is a state representative.

]]>https://www.climateliabilitynews.org/2019/05/17/hawaii-climate-liability-hirono-schatz/feed/35777Hawaii Court Halts Biomass Plant Over Climate Concernshttps://www.climateliabilitynews.org/2019/05/16/hawaii-biomass-renewable-energy/
https://www.climateliabilitynews.org/2019/05/16/hawaii-biomass-renewable-energy/#commentsThu, 16 May 2019 17:34:00 +0000https://www.climateliabilitynews.org/?p=5774By Karen Savage The Hawaii Supreme Court has put the brakes on plans by a biomass company to burn locally grown eucalyptus trees to provide energy to the state’s largest utility. The court ruled last week that the state Public Utility Commission (PUC) failed to consider Hawaii’s goal of reducing greenhouse gas emissions when it […]

The Hawaii Supreme Court has put the brakes on plans by a biomass company to burn locally grown eucalyptus trees to provide energy to the state’s largest utility.

The court ruled last week that the state Public Utility Commission (PUC) failed to consider Hawaii’s goal of reducing greenhouse gas emissions when it approved a power purchase agreement between the Hawaii Electric Light Company and Hu Honua, a wood-burning power plant under construction on the big island of Hawaii.

The ruling came down in favor of Life of the Land, an environmental organization which filed suit arguing that PUC failed to consider carbon emissions when approving the agreement, which is required by state law. The group also argued that PUC violated its due process rights by restricting its participation in the approval process.

The court also said the PUC denied Life of the Land “due process with respect to the opportunity to be heard regarding the impacts that the amended PPA would have on [Life of the Land’s] right to a clean and healthful environment.”

The decision sends the case back to PUC, which must now give explicit consideration to the reduction of greenhouse gas emissions when reconsidering the agreement. PUC must also allow Life of the Land to participate in that process.

Hawaii passed the country’s most aggressive emissions reduction law last year, committing to 100 percent renewable energy by 2045. A year earlier, the state also passed a law committing it to uphold the principles of the Paris Climate Agreement after President Trump announced the U.S. would withdraw from that agreement.

Hu Honua said the plant did not run counter to those efforts. “This is unfortunate as we believe the PUC already considered GHG emissions when it previously approved the PPA, since the record contained evidence showing the Hu Honua project, when operating, would result in a net reduction of GHG emissions when compared to GHG emissions without the project,” Hu Honua said in a statement posted to its website.

Research, however, shows that wood-burning power plants are worse for the climate than coal-fired plants and result in an increase in greenhouse gas emissions. They contribute to the degradation of forest carbon sinks, which absorb carbon from the atmosphere.

An investigation by the nonprofit Climate Central in 2015 found a loophole in clean energy regulations in the EU allows wood energy to be considered carbon neutral. Because wood is considered a renewable energy source, biomass companies that convert coal-fired plants are eligible to receive renewable energy subsidies.

Those subsidies are a target of a lawsuit filed earlier this year by groups in five countries in the European General Court, aiming to stop wood energy from being considered carbon neutral.

The U.S. Environmental Protection Agency last year announced it would also consider biomass energy carbon neutral, a decision made without considering the science that shows otherwise.

It is estimated that Hu Honua would have been eligible for up to $100 million in renewable energy tax credits had the project been completed on time. It is unknown how the court’s decision will affect that eligibility.

A bill working its way through the Hawaii legislature to expand the definition of “renewable energy” for subsidy purposes, initially included wording that would have eliminated the subsidies for monoculture wood crops, like the eucalyptus trees Hu Honua plans to burn. That wording has been dropped in the bill’s most recent version.

Henry Curtis, executive director of Life of the Land, told lawmakers at an April hearing on the bill that the definition of “biofuels” has changed over time.

“Currently, if somebody decided to chop down the Amazon forest and ship it here and burn it for power, it would count as renewable energy. That’s what this clause would seek to get rid of,” Curtis said, referring to the now-eliminated wording.

“A lot of countries around the world claim that chopping down forests and burning it for electricity is carbon neutral,” Curtis said. “That was based on one statement by the forest industry in the 1990’s dealing with Kyoto Protocol—but nobody ever verified it—when it came out saying that burning is carbon neutral. It’s obvious it’s not.”

Congressional leaders at a hearing on the economic and health consequences of climate change on Wednesday weren’t told that a prominent carbon tax proposal backed by the oil and gas industry would also immunize those companies from climate liability lawsuits. The proposal being discussed, the Climate Leadership Council’s Baker Shultz Carbon Dividends Plan, has drawn support from companies like Exxon, which is already battling several of those lawsuits.

“At the heart of the Baker-Schultz Plan is a ‘grand bargain’ that trades a robust and rising carbon fee for regulatory streamlining, thereby appealing to both environmentalists and businesses,” said Ted Halstead, chief executive of the Climate Leadership Council, a policy group, and Americans For Carbon Dividends, an industry-backed organization founded to promote the plan.

What Halstead did not mention in his oral testimony, or in the question and answer period that followed, is that the plan would let oil companies off the hook for climate-related damages. “Robust carbon taxes would also make possible an end to federal and state tort liability for emitters,” the plan reads.

Halstead was invited to testify before the House Ways and Means Committee at Wednesday’s hearing. During prepared testimony, Halstead, who founded the CLC in 2017, outlined details of the Baker-Schultz plan, which calls for a $40 per metric ton carbon tax in exchange for the climate liability waiver and a rollback of most greenhouse gas regulations.

The hearing, which lasted more than four hours, included testimony from scientists and public health experts, including Dr. Katherine Marvel, associate research scientist at NASA Goddard Institute for Space Studies.

The Ways and Means Committee has jurisdiction over taxation and tariffs, as well as programs like Social Security, Unemployment and Medicare. The hearing was meant to delve into the economic and public health impacts of climate change. Halstead was invited to speak about the Baker-Schultz carbon tax proposal.

The plan proposes a gradually rising carbon fee, with all of the proceeds paid to Americans in a monthly dividend payment. For companies that import or export goods to countries without a carbon pricing system, a border adjustment would be specified.

Halstead said the fee would add about 36 cents to the cost of a gallon of gas.

The plan also includes what it calls “regulatory simplification:” a rollback of carbon dioxide emissions regulations. The plans authors claim the program would reduce emissions more than all current and prior climate regulations.

Although most U.S. taxpayers would benefit from monthly dividend payments, none of the proceeds would help cities and states pay for the astronomical costs of climate mitigation and adaptation.

The Climate Leadership Council and Americans for Carbon Dividends, which has spearheaded the push to implement the Baker-Schultz Plan, have worked to garner support for the plan over the past year, placing op-eds in several media outlets. Most do not mention that the plan would eliminate climate liability suits.

“It’s no surprise that the CLC doesn’t talk about the permanent legal immunity provision lurking inside their fossil fuel-funded Trojan Horse,” said Kathrin Sears, supervisor for Marin County, which filed one of the liability suits pending against fossil fuel companies. Marin, along with the county of San Mateo and the city of Imperial Beach, Calif. filed sued 37 companies in 2017 seeking compensation for climate damages.

“Letting oil, gas, and coal companies off the hook means taxpayers from Marin to Miami will have to pay tens of billions of dollars in order to protect our communities from the climate change-related costs and damages those companies knowingly caused,” Sears said.

According to Halstead, the Climate Leadership Council has also coordinated a bipartisan statement supporting carbon dividends signed by more than 3,500 economists and published in the Wall Street Journal, although the statement did not directly support the Baker-Schultz Plan.

Founding members of the Climate Leadership Council include oil giants Exxon, BP, Shell, and Total, corporate giants P & G, Johnson & Johnson, Pepsico, and Excelon. Former Fed chairman Ben Bernanke, former New York City Mayor Michael Bloomberg and former EPA administrator Christine Todd Whitman are also founding members, along with the environmental organization The Nature Conservancy.

Microsoft is based in King County, Wash., which has filed a liability suit against Exxon, Shell, Chevron, BP and ConocoPhillips. The county alleges that the companies knew for decades about fossil fuels’ role in driving climate change and the potential impacts but deliberately failed to inform the public about those risks. The county is demanding the oil companies pay compensatory damages into an abatement fund to help cover the costs of protecting its residents and property.

]]>5767Complaint Charges Australia with Human Rights Violations over Climate Changehttps://www.climateliabilitynews.org/2019/05/12/australia-human-rights-torres-strait-islanders/
Mon, 13 May 2019 02:29:11 +0000https://www.climateliabilitynews.org/?p=5749By Dana Drugmand A group of indigenous Australians have brought a legal complaint against the Australian government for violating their human rights by contributing to climate change. The complaint, filed by indigenous people from the Torres Strait Islands to the United Nations Human Rights Committee, alleges the government’s inadequate response to the climate crisis is […]

A group of indigenous Australians have brought a legal complaint against the Australian government for violating their human rights by contributing to climate change.

The complaint, filed by indigenous people from the Torres Strait Islands to the United Nations Human Rights Committee, alleges the government’s inadequate response to the climate crisis is a violation of the International Covenant on Civil and Political Rights (ICCPR), the world’s oldest human rights treaty. It is the first climate change case in Australia based on human rights claims and it is believed to be the first in the world brought by residents of low-lying islands against a national government.

The Torres Strait Islands are located between the northern tip of Queensland, Australia and the southern edge of Papua New Guinea. Climate change threatens the islands, which experience regular flooding because of sea level rise, and the islanders’ sacred cultural sites.

Fearing that their home and way of life could disappear, the Torres Strait Islanders are seeking legal recourse. Eight islanders from four different islands submitted their complaint on Monday. The Human Rights Committee monitors nations’ compliance with the ICCPR. The islanders’ complaint alleges that Australia violated their rights under the treaty, including the right to life and culture and the right to be free from arbitrary interference with privacy, family and home.

“Climate change is fundamentally a human rights issue. The predicted impacts of climate change in the Torres Strait, including the inundation of ancestral homelands, would be catastrophic for its people,” said Sophie Marjanac, attorney with the nonprofit environmental law firm ClientEarth, which is representing the islanders.

A decision by the Human Rights Committee would not be legally binding, but could exert significant moral pressure on the Australian government to comply.

The Torres Strait region’s land and sea council, known as GBK, is supporting the claim and has launched a national petition calling on the Australian government to increase climate adaptation and mitigation. It calls on the government to commit $20 million to emergency resiliency projects like sea walls, invest long-term in adaptation measures, reduce emissions by at least 65 percent below 2005 levels by 2030. It calls for achieving net zero emissions before 2050 and phasing out coal for domestic electricity and export.

The Australian government has adopted an emissions reduction target of 26-28 percent by 2030 but lacks a concrete plan to meet the target. The government has continued to promote fossil fuel projects, particularly coal and coal seam gas. Last month, the government green-lighted groundwater management plans for the controversial Adani coal mine. A court in New South Wales ruled against another proposed coal mine due to its impact on climate change in February.

The Torres Strait Islanders’ case is part of a growing global climate justice movement seeking to hold governments and fossil fuel companies accountable. The first successful climate lawsuit came when Dutch citizens won a ruling in 2015 compelling the government of the Netherlands live up to its promised emissions reductions. That case inspired others, including the landmark youth-led case Juliana v. United States. The Philippines Commission on Human Rights is also investigating the role of 47 fossil fuel corporations in causing climate change and potentially violating human rights. Another Pacific island nation, Vanuatu, has indicated interest in pursuing climate liability litigation against fossil fuel companies and the governments that support them.

According to ClientEarth, the Torres Strait Islanders’ claim could take up to three years to resolve. If successful, it would be the first decision from an international body finding that nation states have a duty to reduce their emissions under human rights law.

“The Torres Strait Islands have been settled for millennia, but if the Australian government continues on its present course they may not last the century,” said Bill McKibben, co-founder of the climate justice organization 350.org, which is also supporting the action. “This lawsuit is part of an epic fight to hold the carbon barons accountable for wrecking the one planet we’ve got.”

]]>5749Climate Activists Win Necessity Defense Case in Londonhttps://www.climateliabilitynews.org/2019/05/10/necessity-defense-climate-change-activists/
https://www.climateliabilitynews.org/2019/05/10/necessity-defense-climate-change-activists/#commentsFri, 10 May 2019 11:40:40 +0000https://www.climateliabilitynews.org/?p=5732By Isabella Kaminski Two climate change protesters were acquitted of criminal damage in the United Kingdom in a rare success using what has been called the necessity defense to justify civil disobedience. A jury in Southwark Crown Court in London took the minimum time of two hours to reach a unanimous ‘not guilty’ verdict for […]

Two climate change protesters were acquitted of criminal damage in the United Kingdom in a rare success using what has been called the necessity defense to justify civil disobedience.

A jury in Southwark Crown Court in London took the minimum time of two hours to reach a unanimous ‘not guilty’ verdict for Roger Hallam and David Durant, despite instructions from the judge that they should not consider the defendants’ claim that their actions were necessary to address the climate crisis.

“When ordinary people faced the truth, they understand the climate and ecological emergency better than our politicians,” said Hallam, one of the co-founders of Extinction Rebellion, an action group that staged high-profile protests that disrupted large parts of central London last month.

Both men had been charged with criminal damage following a fossil fuel divestment campaign in 2017. Hallam, Durant and six others had sprayed chalk paint inside a building at King’s College. Four of the people involved were released without charge, while the other two pleaded guilty in court.

Hallam, 52, was also charged with a separate offense of criminal damage, for painting the words ‘divest from oil and gas’ on a wall at King’s College a month earlier.

Hallam and Durant were charged with causing nearly $10,000 (£7,000) of damage and faced a maximum sentence of 18 months in prison.

Both men represented themselves in the three-day trial. Durant said they could not afford a lawyer and were not eligible for legal aid, and they also believed by arguing their own case they had “a bit more leeway to make arguments that our lawyer didn’t want to make. We wanted to present ourselves as just normal people to a jury.”

Both admitted they had caused the damage but pleaded not guilty, arguing that their actions were a proportionate response to the climate crisis.

The judge, Michael Gledhill QC, repeatedly interrupted Hallam and Durant, saying climate change was “irrelevant” to the case and told the jury that the defendants could not rely on the necessity defense.

“We were shut down quite a lot,” Durant said. “We’d try to read out case law and we were shut down.” He said he and Hallam snuck climate arguments into their defense and were helped when the prosecution showed clips of their filmed divestment campaign. “That was really handy,” he said. “That was making the case for us.”

Durant, 25, said the 2017 campaign was successful because King’s College London subsequently announced it would divest £14 million from fossil fuels and pledged to become carbon neutral by 2025. “Now I’ve won this court case it feels like I’ve won again,” he said.

Tim Crosland, director of climate campaign group Plan B and a legal adviser to Extinction Rebellion, described the decision as “incredibly significant.”

“This comes just after we’ve had Extinction Rebellion in London, so members of the jury will have been conscious of all of that”, he said. “It’s a test of public opinion and how a randomly selected sample of the population have responded to this”.

More than 1,000 people were arrested during the week-long Extinction Rebellion protests in the UK. Around 50 were charged with an offense and will be appearing in court over the next few weeks.

Crosland said the decision does not set a strict legal precedent but will still be influential. “It’s going to give the prosecution pause for thought. Do they spend more money prosecuting these cases now? And future jurors will read about this and feel emboldened to do what their peers have done.”

The first known success of the necessity defense came in 2008, when six Greenpeace activists, charged with shutting down a coal-fired power plant in Great Britain, successfully used a version of it and were acquitted. Other activists in the United States and elsewhere have tried to use the defense, but haven’t had clear-cut success.

A case against protesters known as the valve-turners went to trial last year in Clearwater County, Minn., after an appellate judge ruled the protesters could use the necessity defense to justify their shutting down of a tar sand pipeline. The trial ended in an acquittal of the protesters, Annette Klapstein, Emily Johnson, Steve Liptay and Benjamin Joldersma, but in anti-climatic fashion when the judge ruled the pipeline company could not prove the activists had caused any actual damage with their protest.

In the case of another valve-turner, Ken Ward, in Washington State, an appeals court last month overturned his conviction for burglary after he broke into a pipeline facility and turned off a valve. The Washington Court of Appeals ruled that the trial court had violated his Sixth Amendment right to present a defense when he was not allowed to use the necessity defense. Ward was granted a new trial.